Wright v. LUMBERMEN'S MUTUAL CASUALTY COMPANY, Civ. No. 2358.
Decision Date | 12 September 1955 |
Docket Number | Civ. No. 2358. |
Citation | 134 F. Supp. 715 |
Parties | Rayford J. WRIGHT v. LUMBERMEN'S MUTUAL CASUALTY COMPANY; National Surety Corporation, Intervenor. |
Court | U.S. District Court — Western District of Louisiana |
Edward Dubuisson, Opelousas, La., for plaintiff.
H. L. Hammett, New Orleans, La., for defendant.
A. V. Pavy, Opelousas, La., for Intervenor.
The essential facts, briefly stated, are these: This is a suit for personal injuries received by plaintiff. The occurrence on which it is predicated happened in Evangeline Parish, Louisiana on January 6, 1947. Defendant is the liability insurer of the party whose negligence allegedly caused the accident. Jurisdiction is based solely on diversity of citizenship. Suit was filed on March 25, 1948. The case was put at issue on September 13, 1948. For a period of almost six years no steps towards the prosecution of this case were taken. On July 8, 1954, this court, on its own motion and pursuant to its policy and inherent power to keep its docket clear, ordered the suit dismissed because no forward steps had been taken in the prosecution of same. On July 13, 1954, plaintiff's attorney wrote a letter to the court requesting that the case be re-instated. On July 15, 1954 the court, by an ex parte order, directed the Clerk to re-instate the suit on the docket. The record reveals that no action was taken in this case, of any nature, between September 13, 1948 (the date answer was filed) and July 8, 1954. Defendant's counsel advised the court by telegram of July 19, 1954 that he objected to the reinstatement and urged that the suit had been abandoned under LSA-Civil Code Article 3519. A formal motion to dismiss is now before the court.
The ultimate question to be decided is whether a federal court, having jurisdiction only because parties are diverse citizens, must apply a statute of the forum state declaring suit abandoned if no steps in prosecution thereof are taken for five (5) years.
Article 3519 of the LSA Civil Code reads in pertinent part as follows:
This article is one of a series of articles supplementing Article 3536 of the Code which provides a one-year prescriptive period for tort actions in Louisiana. Article 3536 is not directly before the court, and whether or not the demands of the plaintiff and intervenor here may be reasserted in another suit in the face of the one-year prescription of Article 3536 must be decided if and when such a new action is commenced.
All that we are concerned with here is whether this suit must be dismissed for the failure of plaintiff and intervenor to prosecute same for a period in excess of the five-year period set down in Article 3519. Articles 3516, 3518 and 3519 of the LSA Civil Code and Article 3536, which is the prescription article itself, must be construed together. There is no question but that Article 3536 ( ) is applicable in the federal courts, and we agree with counsel for defendant that all of these articles must be considered together. Paraphrasing all of these articles, we find the law of Louisiana to be that an action prescribes in one year1 unless it is interrupted2. Suit is an interruption3, but if a suit remains unprosecuted for five years, the interruption shall be considered as having never happened4.
A simple reading of the cited codal articles leaves no doubt that Article 3519 is an integral part of the statute of limitations. In State v. United Dredging Co., 218 La. 744, 50 So.2d 826, 828, the Supreme Court of Louisiana declared that Article 3518 must be read in connection with 3519. The court declared:
It is true that in the above cited case Article 3519 is called a procedural statute. Nevertheless, 3518 and 3519 are stated to be part of the general law of prescription. Very pertinent and decisive is the following quotation from the Louisiana State Supreme Court's decision in Long v. Chailan, 196 La. 380, 199 So. 222, 227:
Vigorously argued by plaintiff's counsel is the proposition that this Louisiana Civil Code Article is not applicable because its provisions are rules of procedure rather than rules of substantive law. Conceding, but not deciding this to be so, would not determine that the article is not applicable. Rules which lawyers and judges call procedural do more than regulate procedure. By its express terms and interpretations, this article is an integral part of the state statute of limitations (supra). The precise point was adjudicated in Guaranty Trust Co. of N. Y. v. York, 1945, 326 U.S. 99, 65 S.Ct. 1464, 1470, 89 L.Ed. 2079. There the court said:
The principles of the Guaranty Trust Company case, supra, were re-affirmed in three cases decided by the Supreme Court of the United States on June 20, 1949, namely, Cohen v....
To continue reading
Request your trial-
LUMBERMEN'S MUTUAL CASUALTY COMPANY v. Wright
...interruption is vitiated by abandonment of the suit. After a hearing on the defendant's motion, the district court dismissed the suit. 134 F.Supp. 715. The district judge held that Article 3519 is "one of a series of articles supplementing Article 3536 of the Code which provides a one year ......
-
Wright v. Lumbermen's Mutual Casualty Company
...the case be reinstated, but that letter does not appear in the record on this appeal. 2 The District Court's opinion is reported in 134 F.Supp. 715, 717. ...